State Farm Insurance v. Campbell (Punitive Damages) Is there an actual constitutional limitation on punitive damage awards? Yes.

. Does 8th Amendment (cruel and unusual punishment) protect from punitive damages? No, because its criminal and not civil. 8th Amendment deals with criminal punishment and degree of punishment. Does one have constitutional right to appeal the punitive damage award? Yes, Due Process allows this. Court should only award based on present case not past complaints or history. Due Process Substantive Procedural (requires de novo standard of review) If so, what standard of review will the court use? De novo. Standard review = Appellate court reviewing case. All standard of reviews are not the same. In assessing lower courts awarding punitive damages they have de novo standard of review = no deference. Abuse of discretion is another option for other cases. Appellate court is not required to give deference to District Court in question of law but is in review of facts. Did the court abuse it's discretion in question of x? De Novo = fresh. Some courts state their standard of review sometimes you have to research. If appealed would a court uphold the punitive damage award? Ratio of compensatory to punitive Reprehensibility of conduct Ratio civil penalty to punitive damages Specific Remedies Court can order someone to do things or refrain from doing things? Injunction is most sought equitable relief First question before seeking equitable? Is there irreparable damage that legal remedies would not suffice? Declaratory Relief Rule 57 Financing Litigation Rule 54d shifts costs Rule 68 : defendant can come at any time and offer settlement and if they don't pay it, they go to trial, and the reward is less than settlement, plaintiff has to pay attorney fees; rule designed to encourage settlement Evans v. Jeff Lawyer working for legal aid accepts settlement waiving attorney fees in exchange for relief from defendants Violated Idaho Legal Aid Society Defendant's settlement offer asked for waived fees Fee shift is fair bargaining, attorney's fees are negotiable How could the attorney have stopped fees from being negotiable and cannot waive them? In the initial meeting with the client, attorney could of written in the contract that fees

cannot be waived. 8a2-Procedural 8a3- Damages you can recover (Fee shift, claim under this) Buckhannon v. West Virginia Department of Health and Human Resources Catalyst theory: allows an award where there is no judicially sanctioned change in the legal relationship of the parties Prevailing party: a plaintiff is a prevailing party if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct. Policy concern: Might impose fee shift on wrong parties Winter v. Natural Resources Defense Council, Inc. (Provisional Remedies) Rigid injury, balancing of equities, There is a test on likelihood of injury but other cases say if the injury potentially suffered is so great than the less proof of chance of something happening in beginning This court rejected minority, and only required 4 things for claim Rule 65 requirements for Temporary Restraining order: Without notice specific facts showing immediate and irreparable injury will result before movant's attorney certifies in writing efforts made to give notice and reasons why it should not be required Preliminary relief comes first Fuentes v. Shevin (Due process and provisional remedies) Due process under the Fourteenth Amendment requires that affected parties in a replevin action must be notified in a timely manner and given an opportunity to be heard prior to a prejudgment seizure. Ex parte : Can get a replevin to recover property, sheriff just has to sign off Matthew V . Eldridge is now test for requirement of if someone has received due process -private interest that will be affected by official action -risk of erroneous deprivation of such interest through the procedures used and probable value or substitute procedural safeguards (before hearing) -Governments interest, including function involved and fiscal/administrative burdens Ethical Limitations in Pleading (Unit 6) Rule 11 = internal police officer, what certifies you to do certain things when signing off on things B.1 = improper use B.2 = frivolous argument, unwarranted by law Think about B.1-B.4 Walker v. Norwest Corp. Filed for diversity personal jurisdiction alleging that SOME of the defendants were citizens of different states. Defendants moved to dismiss and for an award of sanctions based on the that there was not complete diversity. Issue: Did the court abuse its discretion by requiring a more in depth complaint and ruling that Rule 11 sanctions were appropriate. Rule: Attorney's duty to prove diversity completely

Christian v. Mattel, Inc Issue:Whether Rule 11 sanctions are permissible for the filing of what the District Court determines to be a frivolous action. Whether the District Court abuse its discretion in awarding a 501,4565 sanction to the defendant. Rule: To impose sanctions under its inherent, the district court must 'make an explicit finding that counsel's conduct constituted or was tantamount to bad faith'. Rule 11 sanctions are limited to 'papers in violation of the rule, conducts of depositions, discovery meetings of counsel, oral representations at hearings, and behavior in prior proceedings do not fall within the ambit of Rule 11.

ANSWER (12B- Three Major Categories) Affirmative Defense MUST plead them Counter claims MUST be in answers Reply A plaintiff might have to do this in response to an answer, optional and rare, court can order one to file a reply For example, if a fact can be resolved in the pleading stage the court may order a reply Kings Vision Pay Per View v. JC's Dimitris Rule 8b Admit Deny Or say you lack sufficient information to admit/deny In Class Hypo Client retained you to defend her in a negligence claim. Client admits she was the driver but doesn't want to admit this in fear of losing insurance. Complaint alleges that Ima failed to stop. Ima tells you this is true. You both know there were no eye witnesses to confirm or deny this. Complaint states that as a result, plaintiff is unable to practice law. Complaint asserts a credible witness told Timbers that she saw Ima drinking at a local pub prior to accident. Ima says she was not drinking. Cannot deny the FACT that she failed to stop. Indisputable. Can in good faith deny or plead lack of information of allegation on whether she was drinking at bar. Zielinski v. Philadelphia Piers, Inc. Facts:Zielinski (P) was operating a forklift for J. A. McCarthy, Inc. when he was injured by Sandy Johnson. Zielinski sued Philadelphia Piers, Inc. (D) and alleged his injuries were caused by Sandy Johnsons negligent operation of a forklift owned by Philadelphia Piers. Zielinski alleged that Johnson was an employee and agent of Philadelphia Piers at the time of the accident. Issue: May a defendant be estopped from denying alleged facts in a complaint if he has made an ineffective denial of those facts and knowingly allows a plaintiff to continue to rely on them?

Holding and Rule:Yes. A defendant who knowingly makes inaccurate statements may be estopped from denying those statements at trial. Paragraph 5 listed many facts when it should have listed one. This allows admittance and denial more precise and clear as to what exactly is in contention. If it is too far into the trial timeline going back to amend pleading is too expensive and time consuming. AMENDING A PLEADING : can happen all the way up through trial If statutes of limitations expires and realize you need to amend, that is called Relation Back of Amendments An amendment to a pleading relates back to the date of the original pleading when: the law that provides the applicable statute of limitations allows relation back; the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set outor attempted to be set outin the original pleading; or the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment Beeck v. Aquaslide 'n' Dive Corp. Facts: Beeck (P) sustained severe injuries while riding a water slide at a company outing. Beecks complaint named Aquaslide (D) as the manufacturer and sought to recover damages. After three insurance companies investigated the matter Aquaslide admitted that it was the manufacturer, but several months later denied having manufactured the slide after a visit to the site by Aquaslides president. Issue: May a defendant amend its answer to deny a fact which it had previously admitted? Holding and Rule: Yes. A defendant may amend its answer to deny a fact which it had previously admitted. ***Beeck and Zielinski derive there bite from the fact that their bite from the fact that the plaintiff, having suffered a dismissal, would be unable to refile it's complaint against the right defendant within the statute of limitations. Moore v. Baker Facts: Plaintiff Judith Moore consulted Defendant Dr. Baker about a blockage of her carotid artery. Defendant recommended surgery and warned her about its risks. Plaintiff signed a consent form. The operation went badly and left Plaintiff severely and permanently disabled. Plaintiff sued Defendant. The initial complaint alleged that he had violated Georgias informed consent law by failing to advise her of an alternative therapy. Defendant filed a motion for summary judgment on the issue of informed consent. Twenty days later, Plaintiff moved to amend her complaint to assert allegations of negligence by Defendant in the performance of the surgery and post-operative care of Plaintiff. The district court refused to allow Plaintiff to amend her complaint on grounds that the statute of limitations bars the claim asserted in Plaintiffs proposed amended complaint unless the amended complaint relates back to the date of the original complaint. Issue: When should a plaintiff be permitted to amend his complaint? Rule: The determination of whether an amended complaint may relate back to the date of the original complaint is whether the original complaint gave sufficient notice or warning to the defendant of the possibility of a suit involving the claim now being asserted.

Bonerb v. Richard Caron Foundation Facts: In a diversity action, Plaintiff, a New York resident, alleged that he was injured while he was a rehabilitation patient at the Defendants Westfield, Pennsylvania facility. Defendant is a non-profit rehabilitation agency licensed and doing business in Pennsylvania. Plaintiff sought damages related to a slip and fall accident while he was playing basketball on Defendants recreational basketball court. Plaintiff alleged that while he was a rehabilitation patient at Defendants Westfield facility, he was participating in a mandatory exercise program. Plaintiff claimed that the Defendant negligently maintained the basketball court. The district court granted Plaintiffs motion for substitution of new counsel. One month later, Plaintiff moved to amend his complaint to add a new cause of action for counseling malpractice. Plaintiffs new attorney alleges that investigations undertaken since he became Plaintiffs attorney, indicate to him that a malpractice claim is appropriate. Defendant objected on the grounds that the malpractice claim does not relate back to the original pleading and was therefore barred by Pennsylvanias two-year statute of limitations. Issue: Whether an amendment to a complaint that changes the legal theory of a case may relate back to the date of the original pleading under Federal Rule of Civil Procedure Rule 15(c) Rule: Even if an amendment to a complaint changes the legal theory of a case, then the amendment will relate back to the original complaint so long as the original complaint states the same general facts that a purported amended claim is based on, even though it would otherwise be barred by the statute of limitations. ***Legal difference between the two cases are: No prejudice, no discovery had taken place in Bonerb. DISCOVERY Davis v. Precoat Metals Rule: Discovery that is narrowly tailored to the allegations of a complaint is discoverable, even if it involves the personnel files of employees other than the parties to the suit. Steffan v. Cheney Rule: Court imposed sanctions under Federal Rule of Civil Procedure (FRCP) Rule 37 may not be upheld if there imposition is based upon an error of law. Silvestri v. General Motors Corp. Issue: Whether the district court abused their discretion upon dismissing this case upon reaching a finding that in the peculiar circumstances of this case the spoliation of evidence warranted dismissal. Rule: The court has discretion to dismiss an action for the spoliation of a key piece of evidence, particularly when such conduct of the spoliator may have been either deliberate or negligent and becomes highly prejudiced to the defendant. Hickman v. Taylor Facts: Plaintiff had the opportunity to seek knowledge at the public hearing. To require all the work product of the opposing attorney would be cumbersome, excessive, unnecessary and would undermine the legal profession.Inefficiency, unfairness, and sharp practices would inevitably develop . . . Issue: Whether, without a showing of prejudice by the moving party, statements made to discoverable, if they were taken in anticipation of litigation and contained among them the personal recollections and thoughts of opposing counsel. Rule: While the protective cloak of attorney-client privilege does not extend to information that an

attorney secures from a witness while acting for his client in anticipation of litigation, an attempt, without necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse partys counsel, falls outside the arena of discovery. Stalnaker v. Kmart Corp. Facts: The Defendant, Kmart Corp. (Defendant), in a sexual harassment claim sought a protective order under Federal Rule of Civil Procedure (FRCP) Rule 26(c), protecting non-party witnesses from discovery concerning their sexually related activities. Issue: Whether a plaintiff may seek discovery involving the sexual activities of non- party witnesses. Rule: The party requesting a discovery order has the burden of showing good cause for it by submitting a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements. Zubulake v. UBS Warburg LLP Facts: Plaintiff was hired in 1999 as a senior salesperson for Defendant company. Plaintiff was passed over for a promotion, and the person who ended up with the job, Matthew Chapin, proceeded to harass Plaintiff. Plaintiff filed a charge of gender discrimination with the EEOC, and she was fired shortly thereafter. Plaintiff then filed federal, state and city charges of gender discrimination. Plaintiff requested all of Defendants email correspondence concerning Plaintiff as part of discovery, and they initially agreed to a scope of discovery. Defendants did not turn over archived emails because they claim that it would cost $175,000 not including attorneys fees to gather the data. Issue: Whether a plaintiff may seek discovery involving the sexual activities of non- party witnesses.T Rule: he party requesting a discovery order has the burden of showing good cause for it by submitting a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements. SUMMARY JUDGMENT Pre-Answer motion to dismiss tests the sufficiency of the pleading vs. summary judgment which tests the sufficiency of the genuine dispute concerning the necessary elements of the defense. When assessing the general dispute always look at what was presented.

Celotex Corp. v. Catrett Facts: Respondent brought suit against a number of named defendants including the Petitioner, alleging that her husbands death was
facilitated by exposure to products containing asbestos that were manufactured by the Petitioner and defendants. At trial, Petitioners summary judgment motion stated that Respondent could produce no evidence that Petitioners products were the proximate cause of any injuries and further, that she could produce no witnesses to attest otherwise. Respondent then produced three documents which she claimed demonstrated a genuine material fact dispute. Respondent also argued the documents established the decedent had been exposed to the Petitioners asbestos products. The documents included a deposition of the deceased, a letter from an official of one of the decedents former employers, whom Petitioner planned to call as a trial witness and a letter from an insurance company to the Respondents attorney. The Petitioner argued the

documents were inadmissible hearsay and could not be presented in opposition to the summary judgment motion. The district court granted the motion. On appeal, the Court of Appeals held that Petitioners summary judgment motion was defective since Petitioner made no effort to show any evidence to support the motion. Petitioner appealed.

Issue: Whether summary judgment could be entered against a party who failed to make a showing of any evidence to support an issue of triable
fact, of which he or she has the burden of proving at trial.

Rule: Federal Rules of Civil Procedure Rule 56(c) (FRCP Rule 56(c)) mandates summary judgment must be entered, after adequate time for
discovery and upon motion, against a party who failed to show sufficient evidence to establish the existence of an element essential to that partys case and on which that party will bear the burden of proof at trial. Regardless of the who brought the summary judgment there must be evidence on both sides to support or defend a motion. The burden is on both parties not just both.

Bias v. Advantage International, Inc.

Appeals court said their wasn't a genuine dispute or issue of fact because they plaintiffs did not bring forth any defense to the claims of the specific evidence presented by the defendants . Scott v. Harris Facts: A Georgia county deputy clocked motorist car diving at speeds of 73 miles per hour in a 55 mile-an-hour zone. The officer activated his lights and the motorist sped away accelerating his speed. The officer called it in over his dispatch and several officers including Scott joined in. After six minutes and 10 miles of a high speed chase, Officer Scott has permission to employ precision intervention techniques to stop Harris and was told to stop him. Office Scott rear-ended the car, it spun and flipped over. Harris was badly injured and now a quadriplegic. Issue:Whether the summary judgment standard of viewing the facts in light most favorably of the nonmoving party, requires the court to put more weight in testimony than video tape evidence to the contrary. Also, whether the police officer actions were reasonable under the fourth amendment is the second issue. Rule: For Summary Judgment, facts must be viewed in the light most favorably to the non-moving

party only if there is a genuine dispute to alleged facts. Also the objective reasonable standard for violations of the fourth amendment is a balancing test between the persons rights and governments rights. Summary Judgement Review RULE 56 governs summary judgement. In order to prevail under summary judgment you must prove there is not a genuine dispute on one of the elements the party bearing the BOP has brought up. One has to demonstrate a genuine dispute of resisting summary judgment as the BOP bearing party. Facts are interpreted in the face of summary judgment in the light most favorable to the non-moving party If you feel the motion is premature one might try to show that it cannot present facts essential to justify its opposition and the court may : Rule 56d If you submit an affidavit from someone in support of motion for summary judgment, assertions of the declarant/affiant have to be based on personal knowledge. Rule 56c(4) If you are resisting motion for summary judgment, the information you used does not have to be admissible at trial. McKey v. Fairbarn

Reid v. San Pedro

Rule 38 Must demand a jury trial if desired.

For the aspects of the case that involve money = get a jury trial Equitable relief, specific remedies = judge

Historical Test = to determine whether a case is legal (right to a jury) or equitable (no jury). Caperton v. Massey Facts: In October 1998, Hugh Caperton filed suit against A.T. Massey Coal Co., Inc. (Massey) for tortious interference, fraudulent misrepresentation, and fraudulent concealment. A state trial court in West Virginia rendered judgment against Massey and found it liable for $50 million in damages. The Supreme Court of Appeals of West Virginia granted review. However, prior to hearing, Mr. Caperton motioned for Justice Brent Benjamin to recuse himself. He argued that since Massey's C.E.O. had donated $3 million to Justice Benjamin's campaign to win a seat on the Supreme Court of Appeals, Justice Benjamin's participation would present a "constitutionally unacceptable appearance of impropriety." The motion was denied. In a 3-2 decision with Justice Benjamin voting in the majority, the Supreme Court of Appeals reversed the trial court and ordered it to dismiss the case. After its decision, the court granted Mr. Caperton's motion for rehearing, but once again denied his motion for Justice Benjamin to recuse himself. On rehearing, the court maintained in a 3-2 decision that the trial court should be reversed and the case dismissed. It reasoned that a forum selection clause in a contract between the parties made the trial court in West Virginia an improper venue. It also concluded that because the parties had previously adjudicated the dispute in a Virginia state trial court, the doctrine of res judicata did not allow this case to be retried. Issue: Did Justice Brent Benjamin's failure to recuse himself from participation in a case where one of the parties donated $3 million to his election campaign violate the Due Process Clause of the 14th Amendment? Rule: Yes. The Supreme Court held that due process required that Justice Brent Benjamin recuse himself from participation in the case in question. With Justice Anthony M. Kennedy writing for the majority and joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, the Court stated that it need not find that Justice Benjamin was actually biased in his decision making in order to find invalid the decision in which he took part. Rather, it need merely be shown that "under a realistic appraisal of psychological tendencies and human weakness," Justice Benjamin's interest posed "a risk of actual bias" and thus he should have recused himself if his participation threatened the adequate implementation of due process. The Court stated that such a risk of bias exists where a judge has a "direct, personal, substantial, pecuniary interest," as Justice Benjamin did. Therefore, the Court reasoned, he improperly failed to recuse himself. Chief Justice John G. Roberts dissented and was joined by Justices Antonin G. Scalia, Clarence Thomas, and Samuel A. Alito. He argued that the majority imprudently expanded the standard for which a judge need recuse himself by merely showing a "probability of bias." He raised forty points of uncertainty that arise because of the majority's vague standard. Justice Scalia also wrote a separate dissenting opinion. He argued that the majority performed its duties poorly as a clarifying body by making an area of the law vastly more uncertain.

JUDGMENT Takes judgment away from jury

JNOV = RJMOL DIR. VERDICT = JMOL MNT = MNT Judgment As A Matter Of Law (JMOL; before verdict) - Rule 50 Must file before case is submitted to a jury: At the close of the plaintiff's case; or All evidence is in (P and D) Also called a directed verdict Result: Judgment by judge Renewed Judgment (RJMOL/jnov; After verdict) Rule 50(a) Comes after the verdict Allows judgment on verdict (judge approves jury verdict); or Judge enter judgment Combined with MNT Motion for New Trial Rule 59 Result: Do over For any reason for which a new trial has heretofore been granted in in action at law in federal court When verdict against the great weight of evidence (Flawed verdict) or Flawed procedure Pennsylvania Railroad v. Chamberlain Facts: The Respondent filed a complaint which alleged that the deceased, at the time of the accident resulting in his death, was assisting in the yard work of breaking up and making up trains and in the classifying and assorting of cars operating in interstate commerce. Specifically, the complaint alleged that other cars ridden by fellow employees of Petitioner were negligently caused to be brought into violent contact with those upon which the deceased was riding, with the result that he was thrown from a car to the railroad track and run over by a car, killing him. At the conclusion of evidence, the trial court directed the jury to return a verdict in favor of Petitioner. The court of appeals reversed. Issue: Whether a defendant is entitled to a directed verdict where the plaintiff with the burden of proof alleges facts supporting two inconsistent theories, only one of which would impose liability against the defendant. Rule: A defendant is entitled to a directed verdict in a case where the proven facts give equal support to each of two inconsistent inferences, where the plaintiff has the burden of proof. Essentially the court is saying that when the evidence tends to equally support two divergent possibilities, neither is said to be established by legitimate proof. Thus, a verdict in favor of the party with the burden of proof is clearly inappropriate.

Lind v. Schenley Industries Defendant motioned for new trial and judgment notwithstanding the verdict ISSUE: Did the District Court abuse its discretion in granting the motion for a new trial? Flawed verdict. Jury had the evidence to make a verdict and DC invaded the decision of the jury because it didn't like the verdict. There was a miscarriage of justice. Appeals course reinstated initial verdict for Lind. RJMOL and MNT filed by defendant.

RJMOL + MNT = Appealable RJMOL MNT = Appealable -RJMOL MNT = Appealable -RJMOL + MNT = Not appealable (starting over, trial) Capable of Repetition, Yet Evading Review: Allowing a repetitious case to proceed as a way to provide a precedent or correct a matter of law for future cases. (Abortion) APPEALS Mohawk v. Carpenter Issue: Is an order for discovery involving attorney-client privilege eligible for immediate appeal under the Supreme Court's decision in Cohen v. Beneficial Industrial Loan Corp.? Rule: The Supreme Court held that disclosure orders that are adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine. With Justice Sonia Sotamayor writing for the majority and joined by Chief Justice John G. Roberts, John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito, the Court reasoned that post-judgment appeals, "together with other review mechanisms," suffice to protect the rights of litigants. Work product objection protects facts = not reviewable Adverse attorney-client privilege protects relationship = reviewable Liberty Mutual Insurance Co. v. Wetzel Defendant appealed partial summary judgment Court of Appeals did not have jurisdiction to review the granting of partial summary judgment because it was not final nor were any damages or relief awarded that could be appealed. Only final rules are appealable. 1291 Final Judgment Is it final order (meaning nothing else is left to be resolved)? If no, is it 54b (Multiple Claims, Multiple Parties)?

Walk-Thru of Whether a work order is immediately appealable?

 Exception to Final Judgment Rule -Cohen (collateral order doctrine) Conclusively determines question Resolve an important issue completely separate from merits of the action? Effectively un-reviewable on appeal from a final judgement. Cases: Mohawk, Lauro Lines 1292.1 Interlocutory orders Is it 1292a Injunctions Is it 1292b Certification (contrary to law, ask court to certify issue) 2201 Declaratory Judgment? Has anyone been held in contempt? ****Writ of Mandamus When you have determined something is un-appealable

ISSUE AND CLAIM PRECLUSION (Bars the same claim from re-litigation) Claim Preclusion = Res Judicata Same Claim (raised or should have been raised) Transaction v. Legal Claim (Same Evidence) Test Transaction = both suits arise from the same transaction, incident, or factual situation Same Evidence = whether the evidence needed to sustain the second suit would have sustained the first or whether the same facts were essential to maintain both actions Same Parties (and privity) Valid, final judgment Only applies to parties to FIRST suit and their privies Applies to issues raised or that could have been raised in prior suit Judgment was on the merits; Final Judgment (where full fair opportunities to litigate) Would a judgment after a full jury trial, and the judge enters a judgment consistent with verdict for plaintiff be a judgment on the merits? Yes. Would a judgment after 12B6 be a judgment on the merits? If amend and still no claim. Dismissed with prejudice. No. Would a judgment after a Dismissal 12B2 be a judgment on the merits? Court grants motion to dismissed based on lack of jurisdiction. Not a judgment on the merits. No. Would a judgment after a Dismissal for failure to Prosecute be a judgment on the merits? No deposition, no discovery, no evidence, plaintiff injured, etc is on the merits. No. Issue Preclusion = Collateral Estoppel In an earlier case we litigated this issue and now someone is trying to re-litigate the issue. Issue of fact or law

Actually litigated and determined By a valid and final judgment; AND Party against whom asserted had opportunity to fully and fairly litigate (adequate incentives) THEN, a party may be prevented from re-litigating that issue in a subsequent suit against the same party and others. Only applies to ISSUES actually litigated and essential to final judgment Can be asserted by (but not against) non-parties to first suit (no mutuality requirement)

Frier v. City of Vandalia Plaintiff filed multiple suits for replevin. One case dismissed, two others litigated and replevin was denied. Plaintiff went to Federal Court invoking Due Process and seeking relief. Claim dismissed for failure to state a claim upon which relief can be granted. P appeals. Can a plaintiff bring the same suit against the same defendant multiple times? No, a court ought not to resolve a constitutional dispute unless absolutely necessary. Searles divorce and wife gets Slaugh House. Plaintiff argues that they have an undivided one half interest in house since defendant's husband had only a one half interest in property to which the other half was owned by the plaintiff. For purposes of claim and issue preclusion are agents and principles in privity with one another? No, in order for a party to be precluded both suits must involve the same parties or privies and also cause of action. The plaintiff's interest is not in privity with the husband, they had a separate half interest that was not a part of the divorce. The relationship was not mutual or successive. The husband was acting on his individual capacity as husband not a representative for the partnership. Herrick requested information from Defendant and was denied claiming it contained trade secrets. Herrick filed a suit and District Court granted summary judgment to defendant. A month later Taylor requested same files and was denied. Files suit. This time Taylor included two other issues concerning recapture of protected status that Herrick failed to raise in his appeal. Taylor and Herrick had same lawyer. Were in same aircraft club and requested same files. Court found necessary conditions for virtual representation. Does the first suit preclude the second where virtual representation was involved?

Searle Brothers v. Searle

Taylor v. Sturgill

Non-Party Preclusion: Precluding a party to a suit even when they were not named as a party Exceptions in nonparty preclusion (can be included as a party even if they weren't named): agreement by the parties to be bound by a prior actionable preexisting substantive legal relationships adequate representation by someone with the same interests who was a party a party assuming control over prior litigation party who loses an individual suit then suing again, this time as a rep of a class special statutory schemes such as bankruptcy and probate proceedings, provided they comport with due process Some lower carts have recognized 'virtual representation' Virtual representation is rejected because a party's representation of a nonparty is adequate for preclusion purposes only if: the interests of the nonparty and her representative are aligned either party understood herself to be acting in a representative capacity or the original court took care to protect the interest of the non-party Also sometimes requires notice of the original suit to the persons alleged to have been represented

No, the Supreme Court holds that the doctrine of virtual representation is not a constitutionally approved method of nonparty preclusion (see reasons above).

Illinois Central Gulf Railroad v. Parks Jessie and Bertha Parks were injured driving a car that collided with an Illinois Central train They sued together and Bertha recovered for her injury, Jessie did not recover for loss of Bertha's services and consortium Jessie then sued for his own injuries and the trial court held that his claim was not barred by claim preclusion The prior suit also did not preclude Jessie on the issue of contributory negligence Estoppel by judgment (claim preclusion) does not apply; Estoppel by verdict (issue preclusion) does apply The same issues would be raised in the present action so the question is whether the facts or questions were actually litigated and determined. Illinois has the burden in proving the courts decision was based on that particular issue in order to use issue preclusion Whether preclusion be used where the prior case was decided on one of two separate issues and it is not clear as to which one it was decided on? Issue preclusion, which allows the judgment in the prior action to operate as an estoppel as to those facts or questions actually litigated and determined in the prior action, only

applies if the moving party can show that the specific factual issue in question was actually adjudicated on the merits in the prior suit. FINAL EXAM MULTIPLE CHOICE/ESSAY DISCOVERY SCOPE RULE 26 AND 37 (HYPOTHETICALS) DO ISSUE, RULES, ANALYSIS, COUNTER-ANALYSIS, AND POLICY DO ISSUES FIRST

REVIEW RULE 50 Motion for: JMOL 1X for P at the close of D case (does this when P case is really strong or D is weak) 2x for D = 1x at close of P evidence and 1x at close of ALL evidence (both sides) RMOL (Filed when Both or either side may file only after jury returns verdict But, must have filed at correct time MNT = Erroneous error in first trial (flawed verdict/ flawed procedure)